A Guide to the Patriot Act, Part 4.

The law, lawyers, and the court.
Sept. 11 2003 8:24 PM

A Guide to the Patriot Act, Part 4

Should you be scared of the Patriot Act?

This is the last of a four-part series about what's really in the USA Patriot Act. (Read Part 1, Part 2, and Part 3.)

Section 505, aka "National Insecurity-Complex Letters"

This section authorizes the attorney general or a delegate to compel holders of your personal records to turn them over to the government, simply by writing a "national security" letter. Section 505 has garnered a lot less national attention than Section 215—the library records section of the act—which may be why it is invoked a lot more often.

What it does: Section 505 authorizes the use of what's essentially an administrative subpoena of personal records. The subpoenas require no probable cause or judicial oversight.

The law before and how it changed: Before Patriot, these letters could only be issued against individuals who were reasonably suspected of espionage. But Patriot loosened the standard by allowing the letters to be used against anyone, including U.S. citizens, even if they themselves are not suspected of espionage or criminal activity. These letters may now be issued independently by FBI field offices, rather than by senior officials. And unlike Section 215 warrants, they are not subject to even perfunctory judicial review or oversight.

The records that can be obtained through the letters under Patriot include telephone logs, e-mail logs, certain financial and bank records, and credit reports, on the assertion that such information would be "relevant" to an ongoing terrorism investigation. They cannot be used in ordinary criminal investigations. Unlike 215, no court order—not even a rubber-stamped order—is required. Those forced to turn over records are gagged from disclosing the demand.

How it's been implemented: According to documents turned over to the American Civil Liberties Union as part of their FOIA lawsuit, the FBI issued enough national security letters since October 2001 to fill more than five pages of logs. What precisely those letters compelled is unknowable, since virtually every page of those logs were blacked out, ostensibly for security reasons. The government has refused to provide further information on how the letters were used.

A November 2001 memorandum prepared by FBI attorneys warned that the letters "must be used judiciously" to appease Congress, since they expire in 2005, along with other Patriot provisions.

Would you know if Section 505 had been used on you: Not unless some action was brought against you based on the information produced.

Sunsets in 2005: No. *

Prognosis: Sen. Barbara Boxer, D-Calif., introduced the Library and Bookseller Protection Act, S 1158,in May 2003, which exempts libraries and booksellers from having to produce records pursuant to National Security letters. The Protecting the Rights of Individuals Act, S 1552, introduced by Sens. Lisa Murkowski, R-Alaska, * and Ron Wyden, D-Ore., does the same thing.

Enough to get you through a cocktail party: While few Americans seem to be getting exercised over Section 505, it's actually a good deal scarier than 215—the angry librarian provision—in some ways. Why? Because there is no check on the attorney general's discretion, not even a toothless judge. Add to this the government's refusal to disclose how these letters have been used, and there are some grounds for paranoia over this provision.

Section 802, aka "Tree-Hugging Terrorists"

This section has received a lot of attention and is almost single-handedly responsible for alienating right-wing groups like the Eagle Forum, as well as fundamentalist Christians across the land. Why? Because it creates a new crime and could, critics say, be used someday to prosecute Operation Rescue protesters.

What it does: Section 802 creates a category of crime called "domestic terrorism," penalizing activities that "involve acts dangerous to human life that are a violation of the criminal laws of the United States," if the actor's intent is to "influence the policy of a government by intimidation or coercion."

The law before and how it changed: There was no law like this before.

How it's been implemented: TheACLU has conceded that despite the scary hypothetical applications, it knows of no abortion protester or environmental activist who has been prosecuted under the law.

Would you know if Section 802 had been used on you: You'd likely figure it out right quick as they were hauling you away in handcuffs.

Sunsets in 2005: Yes.

Prognosis: The Murkowski and Wyden Protecting the Rights of Individuals Act would narrow the definition of "terrorism," so the law's expanded enforcement tools could not be used against domestic political protesters.

Enough to get you through a cocktail party: The fears over this provision are almost entirely hypothetical. Maybe Greenpeace activists really are on the hook, but that sounds a bit overheated in light of the text of the act. And while fearmongers in the press have suggested that you can now be jailed for a bar fight, the statute requires both endangering of life and an intent to influence the government. This provision is more bark than bite.

Sections 411 and 412, aka "Alien and Sedition Acts"

It's important to note from the outset that virtually all of the administration's unprecedented abuse of aliens—the indefinite detentions, the blanket secrecy, the lack of charges, and the removal of aliens to secret military brigs—have happened absent any legislative authority. While some provisions of Patriot make it easier for the government to treat aliens poorly, Patriot in no way authorized the worst reported abuses.

What they do: Section 411 makes even unknowing association with terrorists a deportable offense. Section 412 allows the attorney general to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous.

The law before and how it changed: 411 makes aliens deportable for associating, even unknowingly, with a "terrorist organization." 412 gives the attorney general new power to order detentions based on a certification that he has "reasonable grounds to believe" that a noncitizen endangers national security. No judicial review is provided except for habeas corpus—a most basic and unlikely avenue of appeal. And the attorney general may continue to hold the alien indefinitely. If an alien does not have a country willing to accept him, he may now be detained indefinitely without trial. Moreover, the act allows for aliens to be held for seven days without being charged with a crime. The act requires a biannual report to Congress but the report need not contain information including the names of those held, when they were seized, where they were detained, or the nature of the charges against them.

How it's been implemented: Sparingly.The DOJ noted in May that the INS has denied admission to all of three aliens (including one who was believed to be a money-launderer) on the security grounds expanded in Section 411. As for Section 412, it hadn't yet been used as of March.

Which is not to say that the INS hasn't detained, deported, or denied admission to bushels of aliens since Sept. 11. But it's generally a big old hassle to deport someone on "security-related" grounds like the ones expanded in Section 411. As the DOJ gingerly put it in May, "security-related grounds of removal may generate more litigation." Through March, every time the INS deported an alien it wasn't keen on, it did so on non-security-related grounds to expedite the removal. Still, the DOJ would like this sunsetted provision to stick around in case any terrorists show up with their visas in perfect order.

Would you know if Sections 411 and 412 had been used on you: Well, if you're one of those three excluded aliens, you're probably aware that you're not in the United States right now. Otherwise, it hasn't.

Sunsets in 2005: Yes for both.

Enough to get you through a cocktail party: These provisions, permitting possibly lengthy detentions based on little more than a John Ashcroft sniff test, would be far more disturbing if aliens weren't subject to far worse abuses at the hands of the administration.

Conclusion:

In studying and reporting on the most controversial aspects of the Patriot Act, we have attempted to be as evenhandedas possible. It bears repeating that the Bush administration has fostered a good deal of national anxiety by its simple refusal to release information allaying public fears about how the act is being implemented.

Immediately after Sept. 11, many Americans seemed to fall victim to an understandable fallacy: We believed that by surrendering our freedoms, we were buying national security. Slowly the haze of fear has cleared, and Americans have begun to demand that the freedoms we surrender correspond directly to national security. The parts of the Patriot Act that rankle most are those provisions that sweep normal criminal law enforcement under the looser procedural standards for fighting terror. It's important that the state be able to fight terror. No one disputes this. But it's equally important that the state not use the war on terror to gut the warrant requirement or undermine the First Amendment.

The best check on such encroachments should be a free and objective judiciary. But as we have noted several times in this series, many of the most disturbing Patriot provisions do away with judicial oversight altogether, while others permit judges to act as rubber stamps in ex parte proceedings—that is, hearings where only the government side is represented.

The next best check on such encroachments is public scrutiny, and, as we've suggested, that scrutiny is only beginning to be as demanding and impatient as it ought. But most Americans still do not believe that Patriot has in any way affected them. So it's worth noting that many of these provisions are used frequently—even if details are blacked out. Go back and look at the sections that ask whether you'd know if Patriot has been used against you. In most cases the answer is no.

We really can be safe without being afraid of our government. It simply requires that security measures be narrowly tailored to fit national security needs. Some parts of the USA Patriot Act meet this test. Some do not. And some are purely opportunistic. Before President Bush convinces Congress to "untie the hands of our law enforcement officials" by expanding the Patriot Act, as he proposed Wednesday, Americans need to begin a national conversation about which is which.

Correction, Sept. 12, 2003: Due to a copy-editing error, this piece originally and incorrectly said that Sen. Lisa Murkowski represents Arkansas. ( Return to the corrected sentence.) July 21, 2004: In this article as originally published, Section 505 was said to sunset in 2005. In fact the provision does not sunset. Return to the corrected item.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Julia Turner is the editor in chief of Slate and a regular on Slate's Culture Gabfest podcast.